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The Supreme Court's Fisher Ruling

Yesterday, the Supreme Court ruled 7 to 1 in Fisher v. U. Texas that affirmative action is constitutional, but only within tight constraints. The Court remanded the case to a lower court and instructed it to apply "strict scrutiny" in deciding whether UT's race-conscious admissions policy met the constitutional standard. The Supremes largely punted here, refusing to ban race-conscious policies but also insisting that courts need to do a more scrupulous job of ensuring that affirmative action is narrowly tailored.

Justice Anthony Kennedy explained in the majority opinion, "A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that 'encompasses a . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.'"

What's the upshot? Three things really. First, the Supremes have now told lower courts that they need to be more vigilant about ensuring that race-conscious policies are not overly broad. This should have the salutary effect of encouraging admissions officials to seek to promote "diversity" in ways that aren't so reliant on skin color.

Second, it's likely that this heightened standard will spur groups critical of affirmative action to bring forward new legal challenges with an eye toward testing the waters. These groups are going to have a field day finding institutions that have adopted race-based policies out of convenience and daring them to meet the "strict scrutiny" standard. (Likely outcome: a whole lot won't.)

Third, admissions officials are in for a frustrating, uncertain stretch. Nobody is quite sure what the new standard should or will mean in practice, which means admissions offices are going to be flying semi-blind as they try to guess how much race-consciousness is going to pass muster.

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